The following excerpt is from the company's
SEC filing.
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CANNON POINT RESOURCES LTD.
TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION
1.1
Definitions
2
1.2
Construction
10
1.3
Currency
11
1.4
Knowledge
1.5
Disclosure Letter
1.6
Schedules
ARTICLE 2
THE ARRANGEMENT
2.1
Arrangement
2.2
Interim Order
12
2.3
Circular and Meeting
13
2.4
U.S. Securities Law Matters
14
2.5
Final Order
15
2.6
Court Proceedings
2.7
Effective Date
16
2.8
Company Board Approval
2.9
Payment of Consideration
17
2.10
Announcement and Shareholder Communications
2.11
Adjustment to Consideration Regarding Distributions
2.12
List of Securityholders
2.13
Closing
18
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1
Representations and Warranties
3.2
Investigation
3.3
Survival of Representations and Warranties
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE ACQUIROR
4.1
4.2
4.3
19
ARTICLE 5
COVENANTS
5.1
Covenants of the Company Regarding the Conduct of Business
5.2
Covenants of the Acquiror Regarding the Conduct of Business
22
5.3
Covenants of the Company Relating to the Arrangement
24
5.4
Covenants of the Acquiror Relating to the Arrangement
25
5.5
Options
5.6
Warrants
26
5.7
Bridge Loan
5.8
Transaction Fee Payable to Fiore
5.9
Minimum Closing Working Capital
ARTICLE 6
CONDITIONS
6.1
Mutual Conditions Precedent
27
6.2
Conditions Precedent to the Obligations of the Acquiror
6.3
Conditions Precedent to the Obligations of the Company
29
6.4
Notice and Cure Provisions
30
6.5
Satisfaction of Conditions
31
ARTICLE 7
COVENANTS RELATING TO ALTERNATIVE PROPOSALS
7.1
Non-Solicitation
7.2
Notification of Alternative Proposals
32
7.3
Responding to Alternative Proposals and Superior Proposals
33
ARTICLE 8
OTHER COVENANTS
8.1
Further Assurances
35
8.2
Access
36
8.3
Shareholder Claims
8.4
Public Statements
8.5
Directors' and Officers' Insurance and Indemnification
8.6
Regulatory Filings and Approvals
37
8.7
Co-operation Regarding Regulatory Filings and Approvals
8.8
Alternative Transaction
ARTICLE 9
TERM, TERMINATION, AMENDMENT AND WAIVER
9.1
Term
38
9.2
Termination
9.3
Termination Payment
39
9.4
Effect of Termination
40
9.5
Remedies
41
ARTICLE 10
GENERAL PROVISIONS
10.1
Amendment
10.2
Waiver
10.3
Expenses; Advisors
42
10.4
Notices
10.5
Severability
43
10.6
Entire Agreement
44
10.7
Assignment
10.8
Governing Law
10.9
Contra Proferentem
10.10
No Third Party Beneficiaries
10.11
Time of Essence
10.12
Counterparts
45
Schedule A
Plan of Arrangement
Schedule B
Arrangement Resolution
Schedule C
Representations and Warranties of the Company
Schedule D
Representations and Warranties of the Acquiror
ARRANGEMENT AGREEMENT
THIS AGREEMENT made the 31
day of August, 2015,
BETWEEN:
NORTHERN DYNASTY MINERALS LTD.
, a corporation existing under the laws of the Province of
British Columbia,
(hereinafter referred to as the
WHEREAS the Acquiror desires to acquire all of the issued and
outstanding securities of the Company;
AND WHEREAS the parties are prepared and intend to carry out the
transactions contemplated herein by way of plan of arrangement
pursuant to Division 5 of Part 9 of the BCBCA (as defined
herein);
AND WHEREAS the boards of directors of each of the Acquiror and
the Company have unanimously determined that the Arrangement is in
the best interests of their respective companies, and have resolved
to support the Arrangement and enter into this Arrangement
Agreement;
AND WHEREAS contemporaneously herewith, the Acquiror has entered
into Support Agreements with each of the Locked-Up Securityholders
(as defined herein) who hold, in aggregate 7,274,820 Common Shares,
1,593,665 Warrants and 2,937,500 Options, pursuant to which, among
other things, each such Securityholder has agreed to vote in favour
of the Arrangement Resolution, all securities of the Company now
held or hereafter acquired by them that are entitled to vote on the
matter, on the terms and subject to the conditions set forth in
such agreements;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of
the mutual covenants and agreements hereinafter set forth and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each party, the parties hereby
covenant and agree as follows:
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ARTICLE 1
In this Agreement, unless something in the subject matter or
context is inconsistent therewith, the following terms shall have
the respective meanings set out below and grammatical variations
shall have the corresponding meanings:
means Northern Dynasty Minerals Ltd.;
Acquiror Board
means the board of directors of the Acquiror;
Acquiror Public Documents
has the meaning set out in Section 5 of Schedule D;
Acquiror Shares
means the common shares of the Acquiror;
means:
any direct or indirect sale, purchase, or acquisition of the
Company or of its securities (including by way of a subscription of
shares or the issuance of shares from treasury) that entitle the
holder thereof to, beneficially or jointly or in concert with
others, own, control or direct more than 20% of the voting rights
attached to the Companys securities, or of all or more than 20% (by
value) of the assets of Company;
any similar transaction or other direct or indirect acquisition,
business combination, arrangement, merger or takeover bid involving
the Company, its subsidiaries, its securities, the securities of
its subsidiaries, or their assets, or
any financing, loan, credit or other agreement (including by way
of the subscription, purchase or issuance of debentures, notes or
other debt instruments) pursuant to which the Company will incur
indebtedness, liabilities or obligations;
Affiliate
has the meaning given to it in the Securities Act;
means this arrangement agreement, including all Schedules
annexed hereto, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms
hereof;
Alternative Transaction
has the meaning set out in Section 8.8;
means the arrangement of the Company under the provisions of
Division 5 of Part 9 of the BCBCA on the terms and subject to the
conditions set out in the Plan of Arrangement, subject to any
amendments or variations thereto made in accordance with Section
10.1 hereof or Article 5 of the Plan of Arrangement or made at the
direction of the Court in the Final Order (provided that any such
amendment or variation is acceptable to both the Acquiror and the
Company, each acting reasonably);
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means the special resolution of the Securityholders of the
Company approving the Arrangement to be considered at the Meeting
substantially in the form of Schedule B;
Associate
has the meaning given to it in the Securities Act;
Business Corporations Act
(British Columbia);
Benefit Plan
has the meaning set out in Section 16(a) of Schedule C;
means the board of directors of the Company;
has the meaning set out in Section 0;
Business Day
means a day, other than a Saturday, a Sunday, or a statutory
holiday in Vancouver, British Columbia;
Cannon Point Nominee
means a qualified person nominated by the Company to be
appointed to the Acquiror Board by the Acquiror concurrently with
the completion of the Arrangement;
'' means the notice of the Meeting and accompanying management
information circular, including all schedules, appendices and
exhibits thereto and enclosures therewith, to be sent to the
Securityholders in connection with the Meeting, as amended,
supplemented or otherwise modified from time to time;
means the United States Internal Revenue Code of 1986, as
amended;
means the common shares of the Company;
means Cannon Point Resources Ltd.;
Company Expense Reimbursement Amount
has the meaning set out in Section 9.3(b);
Company Governing Documents
has the meaning set out in Section 1 of Schedule C;
Company Public Documents
has the meaning set out in Section 9(b) of Schedule C;
Competition Act
(Canada);
Concurrent Financing
means the Acquirors proposed special warrant financing to raise
gross proceeds of a minimum of $10 million and a maximum of $20
million as announced by the Acquiror on August 10, 2015;
Confidentiality Agreement
means the confidentiality agreement dated July 28, 2015 between
the Company and the Acquiror;
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Contract
means any contract, license, franchise, grant, permit, lease,
arrangement, commitment, understanding, joint venture, partnership,
note, bond, mortgage, indenture, instrument, deed of trust or other
agreement or obligation (whether written or oral) to which the
Company is a party or by which the Company is bound or affected or
to which any of its properties or assets is subject;
means the Supreme Court of British Columbia;
Credit Facility
has the meaning set out in Section 5.7;
Depositary
means Computershare Trust Company of Canada as depositary at its
offices as set out in the Letter of Transmittal;
Disclosure Letter
means the disclosure letter delivered by the Company to the
Acquiror contemporaneously with the execution and delivery of this
Agreement;
Dissent Rights
means the rights of dissent in respect of the Arrangement
described in Section 3.1 of the Plan of Arrangement;
Effective Date
means the date the Acquiror and the Company agree upon, acting
reasonably, as the effective date of the Arrangement after all of
the conditions precedent to the completion of the Arrangement as
set out in this Agreement have been satisfied or waived, including
that the Final Order has been granted by the Court;
Effective Time
means 12:01 a.m. (Vancouver time) on the Effective Date, or such
other time as the parties agree to in writing before the Effective
Date;
Encumbrance
includes any mortgage, pledge, assignment, charge, lien, claim,
security interest, adverse interest, adverse claim, other third
party interest or encumbrance of any kind, whether contingent or
absolute, and any agreement, option, right or privilege (whether by
Law, contract or otherwise) capable of becoming any of the
foregoing;
Environmental Laws
has the meaning set out in Section 18 of Schedule C;
Exchange Act
means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder;
means the order of the Court approving the Arrangement under
section 291 of the BCBCA, in a form acceptable to the Company and
the Acquiror, each acting reasonably, as such order may be
affirmed, amended, modified, supplemented or varied by the Court
(with the consent of both the Company and the Acquiror, each acting
reasonably) at any time prior to the Effective Date or, if
appealed, as affirmed or amended (provided that any such amendment
is acceptable to both the Company and the Acquiror, each acting
reasonably)
on appeal unless such appeal is withdrawn, abandoned or
denied;
means Fiore Management and Advisory Corp.;
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Fiore Fee
has the meaning set out in Section 5.8;
means International Financial Reporting Standards;
Interim Order
means the interim order of the Court contemplated by Section
2.2, in a form acceptable to the Company and the Acquiror, each
acting reasonably, providing for, among other things, the calling
and holding of the Meeting, as the same may be amended, modified,
supplemented or varied by the Court;
means any applicable laws, including international, national,
provincial, state, municipal and local laws, treaties, statutes,
ordinances, judgments, decrees, injunctions, writs, certificates
and orders, by-laws, rules, regulations, ordinances, or other
requirements of any Regulatory Authority having the force of
law;
Letter Agreement
means the letter agreement dated August 10, 2015 between the
Company and the Acquiror;
Letter of Transmittal
means the letter of transmittal for use by the Securityholders
with respect to the Arrangement in the form accompanying the
Circular;
means each of the directors and officers and certain
shareholders of the Company;
Match Period
has the meaning set out in Section 7.3(b)(iv);
Material Adverse Effect
means, in respect of a person, any effect that is, or could
reasonably be expected to be, material and adverse to the business,
condition (financial or otherwise), properties, assets (tangible or
intangible), prospects, liabilities (whether absolute, accrued,
conditional or otherwise), operations or results of operations of
such person and its subsidiaries taken as a whole, other than any
effect:
relating to the Canadian or United States economy, political
conditions or securities markets in general;
affecting the gold mining industry in general;
relating to a change in the market trading price of shares of
that person; or
relating to any generally applicable change in applicable Law
(other than orders, judgments or decrees against such person, or
any of its subsidiaries) or in accounting principles or standards
applicable to that person;
provided, however, that the effect referred to in clause (a),
(b) or (d) above does not primarily relate only to (or have the
effect of primarily relating only to) such person and its
subsidiaries, taken as a whole, or disproportionately adversely
affect such person and its subsidiaries taken as a whole, compared
to other companies of similar size operating in the industry in
which it and its subsidiaries operate;
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material fact
and
material change
have the meaning set out in the Securities Act;
means the special meeting of the Securityholders, including any
adjournment or postponement thereof, to be called and held in
accordance with the Interim Order for the purpose of considering
and, if thought fit, approving the Arrangement Resolution and all
other matters requiring approval pursuant to the terms and
conditions of this Agreement or the Interim Order;
Minimum Closing Working Capital
has the meaning set out in Section 5.9;
MI 61-101
means Multilateral Instrument 61-101
Protection of Minority Security Holders in Special
Transactions
Misrepresentation
means an untrue statement of a material fact or an omission to
state a material fact required to be stated or that is necessary to
make a statement not misleading in light of the circumstances in
which it was made;
NI 43-101
means National Instrument 43-101
Standards of Disclosure for Mineral Projects
NYSE MKT
means the NYSE MKT Equities Exchange;
Option Plan
means the Company share option plan in effect on the date hereof
and the agreements entered into thereunder;
Optionholders
means holders of the Options;
means the options issued pursuant to the Option Plan;
Outside Date
means November 30, 2015, or such later date as the parties may
agree in writing;
means a party to this Agreement;
means an individual, general partnership, limited partnership,
corporation, company, limited liability company, unincorporated
association, unincorporated syndicate, unincorporated organization,
trust, trustee, executor, administrator or other legal
representative;
means the plan of arrangement of the Company, substantially in
the form of Schedule A, as it may be amended, supplemented or
otherwise modified from time to time in accordance with its
terms;
Regulatory Approvals
means those sanctions, rulings, consents, authorizations,
orders, clearances, exemptions, permits, waivers, decisions,
decrees, rules, regulations and other approvals (including the
waiver or lapse, without objection, of a prescribed time under a
statute or regulation that states that a transaction may be
implemented if a prescribed time lapses following the giving of
notice without an objection being made) of a Regulatory Authority,
that are required to be obtained in connection with the
transactions contemplated by this Agreement;
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means:
any multinational or supranational body or organization, nation,
government, state, province, country, territory, municipality,
quasi-government, administrative, judicial or regulatory authority,
agency, board, body, bureau, commission, instrumentality, court or
tribunal or any political subdivision thereof, or any central bank
(or similar monetary or regulatory authority) thereof, any taxing
authority, any ministry or department or agency of any of the
foregoing;
any self-regulatory organization or stock exchange, including
the TSX, the NYSE MKT and the TSXV;
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government; and
any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of such entities or
other bodies pursuant to the foregoing;
Related Party
in respect of a person means any related party of such person,
or any associated entity of a related party of such person, as
those terms are defined in MI 61-101;
Representative
means, in respect of a person, its subsidiaries and its
Affiliates and its and their directors, officers, employees, agents
and representatives (including any financial, legal or other
advisors);
Securities Laws
means the Securities Act, together with all other applicable
provincial securities Laws, rules and regulations and published
policies thereunder;
Securityholder Approval
has the meaning set out in Section 2.2(d);
means, collectively, Shareholders, Optionholders and
Warrantholders;
means the System for Electronic Document Analysis and
Retrieval;
means the holders of Common Shares;
subsidiary
means, with respect to a person, any body corporate of which
more than 50% of the outstanding shares ordinarily entitled to
elect a majority of the board of directors thereof (whether or not
shares of any other class shall or might be entitled to vote upon
the happening of any event or contingency) are at the time owned
directly or indirectly by such person and shall include any body
corporate, partnership, joint venture or other entity over which it
exercises direction or control or which is in a like relation to a
subsidiary;
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bona fide
Alternative Proposal that:
is made in writing after the date hereof;
was not solicited after the date hereof in contravention of
Section 7.1(a) and did not result from the breach of either Section
4 of the Letter of Intent or Article 7 by the Company or its
Representatives;
is made for all or substantially all of the consolidated assets
of the Company or all of the outstanding Common Shares not owned by
the person making such Alternative Proposal;
in the good faith determination of the Board and in the proper
discharge of its fiduciary duties, after consultation with its
legal counsel and financial advisors:
would, if consummated in accordance with its terms (but not
assuming away any risk of non-completion), result in a transaction
more favourable to the Shareholders from a financial point of view
than the Arrangement taking into account the form and amount of
consideration, the likelihood and timing of completion and the
other terms thereof (after due consideration of the legal,
financial, regulatory and other aspects of such proposal and other
factors deemed relevant by the Board);
complies with applicable Law;
(iii)
is not subject to a due diligence condition;
offers the same consideration on a per share basis to all
Shareholders (but for greater certainty, does not restrict the
provision of payments described in paragraphs (b) or (c) of the
definition of collateral benefits in MI 61- 101);
is reasonably capable of being completed in accordance with its
terms without undue delay or uncertainty, taking into account all
legal, financial, regulatory and other aspects of such proposal and
the party making such proposal and taking into account that
shareholder approval might be required; and
in respect of which the financing is then committed or
confirmation is provided from the sources of financing to be used
to complete the transaction contemplated by such Alternative
Proposal that such financing is available subject to customary
conditions; and
that the taking of action in respect of such Alternative
Proposal is necessary for the Board in the discharge of its duties
under applicable Law;
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Superior Proposal Notice
has the meaning set out in Section 7.3(b)(iii);
Support Agreements
means, collectively, the support agreements dated August 31,
2015 between the Acquiror and each of the Locked-Up
Securityholders;
or
means all income taxes (including any tax on or based upon net
income, gross income, income as specially defined, earnings,
profits or selected items of income, earnings or profits) and all
capital taxes, gross receipts taxes, environmental taxes, sales
taxes, use taxes, ad valorem taxes, value added taxes, transfer
taxes, franchise taxes, licence taxes, withholding taxes, payroll
taxes, employment taxes, Canada Pension Plan or Québec Pension Plan
premiums, excise, severance, social security, workers'
compensation, unemployment insurance or compensation, stamp taxes,
occupation taxes, premium taxes, property taxes, windfall profits
taxes, alternative or add-on minimum taxes, goods and services tax,
customs duties or other taxes, fees, imposts, assessments or
charges of any kind whatsoever, together with any interest and any
penalties or additional amounts imposed by any taxing authority
(domestic or foreign) on such entity, and any interest, penalties,
additional taxes and additions to tax imposed with respect to the
foregoing;
Tax Act
Income Tax Act
(Canada), as amended;
Tax Returns
means all returns, declarations, reports, elections, information
returns, statements and other documents filed or required to be
filed with any taxing authority relating to Taxes;
Termination Payment
has the meaning set out in Section 9.3(a);
Termination Payment Event
has the meaning set out in Section 9.3(a);
Transaction Consideration
means the fraction of an Acquiror Share to be received based
upon the WAP and based on an initial deemed value of $0.15 for each
Common Share. The initial ratio of $0.15 divided by the WAP is
the
Exchange Ratio
, at the date of this Agreement is 0.376, and is subject to
adjustment pursuant to the provisions of Section 5.9 of this
Agreement;
Treasury Regulations
means Regulations of the United States Department of the
Treasury and/or the United States Internal Revenue Service
promulgated under or in respect of the Code;
means the Toronto Stock Exchange;
means the TSX Venture Exchange;
U.S. Securities Act
means the United States Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder;
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U.S. Securities Laws
means all applicable securities laws in the United States,
including the U.S. Securities Act, the Exchange Act and any
applicable state securities laws;
means the weighted average price at which the Acquiror issues
Acquiror Shares in the Concurrent Financing being $0.399;
means the holders of the Warrants; and
means the outstanding share purchase warrants of the
Company.
In this Agreement, unless otherwise expressly stated or the
context otherwise requires:
references to Agreement, this Agreement, hereto, herein, hereby,
hereunder, hereof and similar expressions are references to this
Agreement and not to any particular Section of or Schedule to this
Agreement;
references to an Article, Section or Schedule followed by a
number or letter refer to the specified Article or Section of or
Schedule to this Agreement;
words importing the singular shall include the plural and vice
versa, and words importing gender shall include the masculine,
feminine and neuter genders;
the use of headings is for convenience of reference only and
shall not affect the construction or interpretation hereof;
if the date on which any action is required to be taken
hereunder by any of the parties is not a Business Day, such action
shall be required to be taken on the next succeeding day that is a
Business Day;
a period of Business Days is to be computed as beginning on the
day following the event that began the period and ending at 4:30
p.m. (Vancouver time) on the last day of the period if the period
is a Business Day or at 4:30 p.m. (Vancouver time) on the next
Business Day if the last day of the period does not fall on a
Business Day;
the terms material and materially shall, when used in this
Agreement, be construed, measured or assessed on the basis of
whether the matter would materially affect a party and its
subsidiaries, taken as a whole;
references to any legislation or to any provision of any
legislation shall include any modification or re-enactment thereof,
any legislation provision substituted therefor and all regulations,
rules and interpretations issued thereunder or pursuant
thereto;
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references to any agreement or document shall be to such
agreement or document (together with the schedules and exhibits
attached thereto), as it may have been or may hereafter be amended,
modified, supplemented, waived or restated from time to time;
and
wherever the term includes or including is used, it shall be
deemed to mean includes, without limitation or including, without
limitation, respectively.
1.3
Unless otherwise indicated, all dollar amounts referred to in
this Agreement are expressed in Canadian dollars.
1.4
References to the knowledge of the Company means the actual
knowledge, after due inquiry, of the officers of the Company.
References to the knowledge of the Acquiror means the actual
knowledge, after due inquiry, of the senior officers of the
Acquiror.
1.5
Any reference to a matter being disclosed or set out in the
Disclosure Letter shall mean disclosure in such section of the
Disclosure Letter that is referred to in the relevant section of
this Agreement and disclosure in any section of the Disclosure
Letter shall not be disclosure for the purposes of any other
section of the Disclosure Letter.
1.6
The Schedules to this Agreement, as listed below, are an
integral part of this Agreement:
Description
Plan of Arrangement
Representations and Warranties of the Company
Representations and Warranties of the Acquiror
ARTICLE 2
THE ARRANGEMENT
2.1
The Company and the Acquiror agree that the Arrangement shall be
implemented in accordance with and subject to the terms and
conditions contained in this Agreement and the Plan of
Arrangement.
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Interim Order
The Company agrees that as soon as reasonably practicable after
the date hereof, but in any event no later than September 22, 2015,
or such other date as the Acquiror and the Company may agree, the
Company, in a manner reasonably acceptable to the Acquiror, shall
apply for the Interim Order pursuant to Division 5 of Part 9 of the
BCBCA and, in co-operation with the Acquiror, prepare, file and
diligently pursue an application for the Interim Order, which shall
provide, among other things:
for the class of persons to whom notice is to be provided in
respect of the Arrangement and the Meeting and for the manner in
which notice is to be provided;
that the securities of the Company for which holders shall be
entitled to vote on the Arrangement Resolution shall be Common
Shares, Options and Warrants, voting together as a single
class;
that Securityholders shall be entitled to vote on the
Arrangement Resolution, with each Securityholder being entitled to
one vote for each Common Share, and one vote for each Common Share
underlying the Options and Warrants held by such Securityholder, as
applicable;
that the requisite approval for the Arrangement Resolution shall
be: (i) at least 662/3% of the votes cast by the Shareholders,
present in person or represented by proxy at a Meeting, voting as a
single class; (ii) at least 662/3% of the votes cast by the
Securityholders, present in person or represented by proxy at a
Meeting, voting as a single class; and (iii) if required, a simple
majority of the votes cast on the Arrangement Resolution by
Securityholders present or in person or represented by proxy at the
Meeting (excluding any votes cast by certain related parties and
interested parties (as such terms are defined in MI 61-101) in
accordance with the requirements of MI 61-101) (collectively
the
that, in all other respects, the terms, restrictions and
conditions of the Company Governing Documents, including quorum
requirements and all other matters, shall apply in respect of the
Meeting;
that the Acquiror intends to rely upon the exemption from
registration provided by section 3(a)(10) of the U.S. Securities
Act in connection with the issuance of Acquiror Shares to be issued
in exchange for securities as contemplated by the Arrangement,
subject to and conditioned upon the Court's determination following
a hearing that the Arrangement is fair and reasonable to the
Securityholders;
for the grant of Dissent Rights as contemplated in the Plan of
Arrangement;
for the notice requirements with respect to the presentation of
the application to the Court for the Final Order;
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that the Meeting may be adjourned or postponed from time to time
by the Company subject to the terms of this Agreement without the
need for additional approval of the Court;
that the record date for the Securityholders entitled to notice
of, and to vote at, the Meeting shall not change in respect of any
adjournment(s) or postponement(s) of the Meeting; and
for such other matters as the Acquiror may reasonably require,
subject to obtaining the prior consent of the Company, such consent
not to be unreasonably withheld or delayed.
2.3
Circular and Meeting
(a) As soon as is practicable after the date hereof, the Company
shall prepare, in consultation with the Acquiror, the Circular
which, together with any other documents required by applicable Law
in connection with the Meeting, shall be prepared in accordance
with applicable Law. The Circular shall, subject to Article 7,
reflect the Board Approval, a statement that the Locked-Up
Securityholders have agreed to vote all of the Common Shares,
Options and Warrants held by such persons in favour of the
Arrangement Resolution, subject to the terms of the Support
Agreements.
(b) Prior to the printing of the Circular and during the course
of its preparation, the Company shall provide the Acquiror with
timely opportunity to review and comment on it, and the Company
shall in good faith consider incorporating therein all reasonable
comments made by the Acquiror and shall consult in good faith with
the Acquiror regarding any comments it proposes not to
incorporate.
(c) The Acquiror shall provide to the Company for inclusion in
the Circular such information regarding the Acquiror as is required
by applicable Law to be included in the Circular. The Acquiror
represents, warrants and covenants that any information it provides
to the Company for inclusion in the Circular shall be accurate and
complete in all material respects as of the relevant date of such
information and shall not contain any Misrepresentation. The
Acquiror shall indemnify and save harmless the Company and its
directors and officers from and against any and all liabilities,
losses, damages, claims, costs, expenses, interest awards,
judgments and penalties suffered or incurred by any of them in
connection with or as a result of any Misrepresentation contained
in any information that was provided by the Acquiror to the Company
for inclusion in the Circular.
(d) As soon as practicable after the issuance of the Interim
Order, the Company shall cause the Circular, together with other
documents required by applicable Law in connection with the
Meeting, to be sent to the Securityholders and filed as required by
the Interim Order and applicable Law, and the Company shall call
and hold the Meeting in accordance with the Interim Order, the
Company Governing Documents and applicable Law.
(e) The Company and the Acquiror shall diligently do all such
reasonable acts and things as may be necessary to comply in all
material respects with National Instrument 54-101
Communication with Beneficial Owners of Securities of a
Reporting Issuer
in connection with the Meeting and, without limiting the
generality of the foregoing, use all reasonable efforts to call and
hold the Meeting by no later than October 23, 2015.
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(f) Subject to Article 7, the Company shall use its commercially
reasonable efforts
to secure the approval of the Arrangement Resolution by
Securityholders and solicit proxies for the approval of the
Arrangement Resolution in accordance with applicable Law. If
requested by the Acquiror, the Company shall employ, at the
Acquiror's cost, the services of dealers and proxy solicitation
agents selected by the Acquiror. The Company shall instruct any
such proxy solicitation agents: (i) to report to the Acquiror and
its designated Representatives concurrently with their reports to
the Company and to advise the Acquiror as the Acquiror may
reasonably request, and on a daily basis on each of the last seven
Business Days prior to the Meeting, as to the aggregate tally of
the proxies received by the Company in respect of the Arrangement
Resolution and any other matters to be considered at the Meeting;
and (ii) to cooperate with the Acquiror and any solicitation agents
or other Representative of the Acquiror hired by the Acquiror to
assist in the solicitation of proxies in respect of the
Meeting.
(g) The Company shall provide the Acquiror with a copy of any
purported exercise of Dissent Rights and written communications
with any Shareholder purportedly exercising such Dissent Rights and
shall not, except as required by the BCBCA, settle or compromise
any action brought by any present, former or purported holder of
any of its securities in connection with the Arrangement or the
other transactions contemplated by this Agreement, without the
prior consent of the Acquiror, acting reasonably.
(h) The Meeting shall be held in Vancouver, British Columbia on
a Business Day to be agreed upon by the parties, acting reasonably.
Subject to Article 7, the Company shall not adjourn, postpone or
cancel (or propose to adjourn, postpone or cancel) the Meeting,
except with the Acquiror's prior written consent or as required by
applicable Law or the Company Governing Documents. The Company
shall provide notice to the Acquiror of the Meeting and allow the
Acquiror's Representatives to attend the Meeting.
(i) The Company and the Acquiror shall each promptly notify the
other party if at any time before the Meeting it becomes aware (in
the case of the Company only with respect to the Company and in the
case of the Acquiror only with respect to the Acquiror) that the
Circular contains a Misrepresentation, or otherwise requires an
amendment or supplement to the Circular, and the parties shall
co-operate in the preparation of any amendment or supplement to the
Circular, as required or appropriate, and the Company shall
promptly mail or otherwise publicly disseminate any amendment or
supplement to the Circular as required by the Court or applicable
Law.
2.4
U.S. Securities Law Matters
The parties agree that the issuance of the Acquiror Shares on
completion of the Arrangement to the Shareholders shall be done in
reliance on the exemption from the registration requirements of the
U.S. Securities Act provided by Section 3(a)(10) thereof. In order
to ensure the availability of the exemption from registration
provided by Section 3(a)(10) of the U.S. Securities Act, the
parties agree that the Arrangement shall be carried out on the
following basis:
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prior to the issuance of the Interim Order, the Court shall be
advised of the intention of the parties to rely on the exemption
from registration provided by Section 3(a)(10) of the U.S.
Securities Act with respect to the issuance of the Acquiror Shares
pursuant to the Arrangement, based on the Court's approval of the
Arrangement;
the Court shall be required to satisfy itself that the
Arrangement is fair and reasonable;
the Company shall ensure that each Shareholder entitled to
receive Acquiror Shares under the Arrangement shall be given
adequate notice advising them of their right to attend the hearing
of the Court to give approval of the Arrangement and providing them
with sufficient information necessary for them to exercise that
right;
the Shareholders shall be advised that the Acquiror Shares, to
be issued in the Arrangement, have not been registered under the
U.S. Securities Act and shall be issued in reliance on the
exemption from registration provided by Section 3(a)(10) of the
U.S. Securities Act;
the Interim Order shall specify that each Securityholder shall
have the right to appear before the Court at the hearing so long as
it enters an appearance within a reasonable time; and
the Final Order shall expressly state that the Arrangement is
approved by the Court as being fair and reasonable to
Securityholders.
2.5
Final Order
If the Interim Order is obtained and the Arrangement Resolution
is passed at the Meeting as provided for in the Interim Order and
as required by applicable Law, subject to the terms of this
Agreement, the Company shall as soon as reasonably practicable
thereafter, and in any event within three Business Days thereafter,
take all steps necessary or desirable to submit the Arrangement to
the Court and diligently pursue an application for the Final Order
pursuant to Division 5 of Part 9 of the BCBCA.
2.6
Court Proceedings
The Company shall provide the Acquiror with reasonable
opportunity to review and comment upon drafts of all material to be
filed with the Court in connection with the Arrangement, and shall
give reasonable consideration to all such comments. The Company
shall provide to the Acquiror, on a timely basis, copies of any
notice of appearance or other Court documents served on the Company
in respect of the application for the Interim Order or the Final
Order or any appeal therefrom and of any notice, whether written or
oral, received by the Company indicating any intention to oppose
the granting of the Interim Order or the Final Order or to appeal
the Interim Order or the Final Order. Subject to applicable Law,
the Company shall not file any material with the Court in
connection with the Arrangement or serve any such material, and
shall not agree to modify or amend materials so filed or served,
except as contemplated hereby or with the Acquiror's prior written
consent, such consent not to be unreasonably withheld or delayed,
provided that nothing herein shall require the Acquiror to agree or
consent to any increased purchase price or other consideration or
other modification or amendment to such filed or served materials
that expands or increases the Acquiror's obligations set forth in
any such filed or served materials or under this Agreement. The
Company shall ensure that all materials filed with the Court in
connection with the Arrangement are consistent in all material
respects with the terms of this Agreement and the Plan of
Arrangement. The Company shall not object to legal counsel to the
Acquiror making submissions on the hearing of the motion for the
Interim Order and the application for the Final Order. The Company
shall oppose any proposal from any party that the Final Order
contain any provision inconsistent with this Agreement, and, if at
any time after the issuance of the Final Order and prior to the
Effective Date, the Company is required by the terms of the Final
Order or by Law to return to Court with respect to the Final Order,
it shall do so after notice to, and in consultation and
co-operation with, the Acquiror.
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Effective Date
The Arrangement shall become effective at the Effective Time on
the Effective Date. Upon issuance of the Final Order and subject to
the satisfaction or, where not prohibited, the waiver of the
conditions (excluding conditions that, by their terms, cannot be
satisfied until the Effective Date, but subject to the satisfaction
or, where not prohibited, the waiver of those conditions as of the
Effective Date) set forth in Article 6, unless another date is
agreed to in writing by the parties, each of the parties on or
before the Effective Date shall proceed to file any documents as
required pursuant to Section 292 of the BCBCA, and such other
documents as may be required to give effect to the Arrangement
pursuant to Division 5 of Part 9 of the BCBCA, whereupon at the
Effective Time on the Effective Date, the transactions comprising
the Arrangement shall be deemed to occur in the order set out in
the Plan of Arrangement without any further act or formality. From
and after the Effective Time, the Plan of Arrangement shall have
all of the effects provided by applicable Law, including the BCBCA.
The Company agrees to negotiate in good faith with the Acquiror to
amend the Plan of Arrangement at any time prior to the Effective
Time in accordance with Section 10.1 of this Agreement to include
such other terms determined to be necessary or desirable by the
Acquiror, acting reasonably, provided that the Plan of Arrangement
shall not be amended in any manner which is inconsistent with the
provisions of this Agreement, which would reasonably be expected to
delay, impair or impede the satisfaction of any condition set forth
in Article 6 or which has the effect of reducing the Transaction
Consideration or which is otherwise prejudicial to the Shareholders
or other parties to be bound by the Plan of Arrangement.
2.8
Company Board Approval
The Company represents and warrants to and in favour of the
Acquiror, and acknowledges that the Acquiror is relying upon such
representations and warranties in entering into this Agreement,
that, as of the date hereof the Board, after consultation with its
financial advisors and legal counsel, has unanimously determined
that the Arrangement is fair from a financial point of view to the
Securityholders and is in the best interests of the Company, and
accordingly has unanimously approved the entering into of this
Agreement and the making of a recommendation that Securityholders
vote in favour of the Arrangement Resolution (collectively, the
- 17 -
2.9
Payment of Consideration
The Acquiror shall, following receipt of the Final Order and the
Regulatory Approvals, and prior to the Effective Time, deliver or
cause to be delivered
sufficient Acquiror Shares to the Depositary to pay in full the
aggregate Transaction Consideration payable to the Shareholders
(other than Shareholders exercising Dissent Rights and who have not
withdrawn their notice of objection) pursuant to the Plan of
Arrangement.
Announcement and Shareholder Communications
The Company may publicly announce the transactions contemplated
hereby promptly following the execution of this Agreement, the text
and timing of such announcement to be approved in writing by the
Acquiror in advance, acting reasonably. The Acquiror and the
Company agree to co-operate in the preparation of presentations, if
any, to Securityholders regarding the transactions contemplated by
this Agreement and this Arrangement and the Company agrees to
consult with the Acquiror in connection with any communications or
meeting with Securityholders that it may have, and neither party
shall (a) issue any press release or otherwise make public
announcements with respect to this Agreement or the Plan of
Arrangement without the prior written consent of the other party
(which consent shall not be unreasonably withheld or delayed),
except as permitted by Article 7, or (b) subject to Section 8.6,
make any filing with any Regulatory Authority with respect thereto
without the prior written consent of the other party; provided,
however, that the foregoing shall be subject to each party's
overriding obligation to make any disclosure or filing required
under applicable Law or stock exchange rules, and the party making
such disclosure shall use commercially reasonable efforts to give
prior oral or written notice to the other party and reasonable
opportunity to review or comment on the disclosure or filing, and
if such prior notice is not possible, to give such notice
immediately following the making of such disclosure or filing.
Adjustment to Consideration Regarding Distributions
If on or after the date hereof, the Company declares, sets aside
or pays any dividend or other distribution to the Shareholders of
record as of a time prior to the Effective Time, the Acquiror shall
make such adjustments to the Transaction Consideration as it
determines acting in good faith to be necessary to restore the
original agreement of the parties in the circumstances. For greater
certainty, if the Company takes any of the actions referred to
above, the aggregate consideration to be paid by the Acquiror shall
be decreased by an equivalent amount.
2.12
List of Securityholders
At the reasonable request of the Acquiror from time to time, the
Company shall provide the Acquiror with a list (in both written and
electronic form) of the registered Shareholders, together with
their addresses and respective holdings of Common Shares, with a
list of the names together with their addresses and respective
holdings of all persons holding securities or other rights to
acquire Common Shares (including Optionholders and Warrantholders)
and a list of non-objecting beneficial owners of Common Shares,
together with their addresses and respective holdings.
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2.13
The closing of the Arrangement shall take place at the offices
of McMillan LLP, Royal Centre, 1055 West Georgia Street, Suite
1500, Vancouver, British Columbia at 10:00 a.m. (Vancouver time) on
the Effective Date, or at such other time and place as may be
agreed to by the parties.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1
The Company hereby makes to the Acquiror the representations and
warranties set out in Schedule C and acknowledges that the Acquiror
is relying upon these representations and warranties in connection
with the entering into of this Agreement.
3.2
Any investigation by the Acquiror or its Representatives shall
not mitigate, diminish or affect the representations and warranties
of the Company pursuant to this Agreement.
3.3
Survival of Representations and Warranties
The representations and warranties of the Company contained in
this Agreement shall survive the execution and delivery of this
Agreement and shall expire and be terminated and extinguished at
the Effective Time.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE ACQUIROR
4.1
The Acquiror hereby makes to the Company the representations and
warranties set out in Schedule D and acknowledges that the Company
is relying upon these representations and warranties in connection
with the entering into of this Agreement.
4.2
Any investigation by the Company or its Representatives shall
not mitigate, diminish or affect the representations and warranties
of the Acquiror pursuant to this Agreement.
- 19 -
4.3
The representations and warranties of the Acquiror contained in
this Agreement shall survive the execution and delivery of this
Agreement and shall expire and be terminated and extinguished at
the Effective Time.
ARTICLE 5
5.1
Covenants of the Company Regarding the Conduct of Business
The Company agrees that, prior to the Effective Time, unless the
Acquiror shall otherwise agree in writing, such agreement not to be
unreasonably withheld, delayed or conditioned, or as otherwise
expressly contemplated or permitted by this Agreement, the Company
shall:
conduct its business only in, not take any action except in, and
maintain its facilities in, the usual, ordinary and regular course
of business consistent with past practice and use commercially
reasonable efforts to: (i) preserve intact its present business
organization, assets (including intellectual property) and
goodwill; (ii) maintain its real property interests (including
title to, and leasehold interests in respect of, any real property)
in good standing; (iii) keep available the services of its officers
and employees as a group; and (iv) preserve the current
relationships with consultants, and others having business
relationships with it;
issue, sell, pledge, lease, dispose of, encumber or agree to
issue, sell, pledge, lease, dispose of or encumber: (A) any
additional shares of, or any options, warrants, calls, conversion
privileges or rights of any kind to acquire any shares or other
securities of, the Company (other than the issuance of Common
Shares pursuant to the exercise in accordance with their terms of
Options or Warrants currently outstanding); or (B) any assets of
the Company;
amend or agree to amend any of the terms of any of the Options
or the Warrants, or amend, extend, terminate or otherwise alter (or
agree to do any of the foregoing in respect of) any other
contractual arrangement of the Company;
amend or propose to amend the notice of articles, articles,
by-laws or other constating documents of the Company;
split, combine or reclassify any outstanding Common Shares or
declare, set aside or pay any dividend or other distribution in
cash, stock, property or otherwise with respect to the Common
Shares;
- 20 -
redeem, purchase or offer to purchase any Common Shares or other
securities of the Company;
reorganize, amalgamate or merge by plan of arrangement or
otherwise the Company with any other person, company, partnership
or other business organization whatsoever or incorporate any
subsidiaries;
(vii)
reduce the stated capital of the Company;
(viii)
acquire or agree to acquire (by merger, amalgamation, plan of
arrangement, acquisition of shares or assets or otherwise) any
company, partnership or other business organization or division, or
incorporate or form any company, partnership or other business
organization or make any investment either by purchase of shares or
securities, contributions of capital, property transfer or purchase
of any property or assets of any other person, company, partnership
or other business organization;
enter into or agree to the terms of any joint venture or similar
agreement, arrangement or relationship;
incur or commit to incur any indebtedness for borrowed money,
capital expenditures, or any other material liability, contractual
commitment or obligation or issue any debt securities;
enter into any agreement with, or make any payments to, any
Related Party of the Company other than the Fiore Fee;
(xii)
endorse, or otherwise as an accommodation become responsible
for, the obligations of any other person, company, partnership or
other business organization, or make any loans or advances;
(xiii)
adopt a plan of liquidation or resolutions providing for the
liquidation or dissolution of the Company;
(xiv)
take any action or enter into any transaction that would
preclude the Acquiror from obtaining the tax bump, determined under
paragraph 88(1)(d) of the Tax Act, in respect of the
non-depreciable capital property of the Company upon a wind-up, or
amalgamation with, the Company;
pay, discharge or satisfy any material claims, liabilities or
obligations other than the payment, discharge or satisfaction, in
the ordinary course of business consistent with past practice, of
liabilities reflected or reserved against in the Company's
financial statements or incurred in the ordinary course of business
consistent with past practice;
(xvi)
authorize, recommend, propose or agree to any release or
relinquishment of any material contractual right or other material
right under any licence or permit or material contract;
- 21 -
(xvii)
abandon or fail to diligently pursue any application for any
material licence, permit, order, authorization, consent, approval
or registration which is currently pending or contemplated to be
sought or required;
(xviii)
waive, release, grant or transfer any rights of value or modify
or change in any material respect any existing licence, lease,
permit, material contract or other material document, other than in
the ordinary course of business consistent with past practice;
or
(xix)
enter into new commitments of a capital expenditure nature or
incur any new contingent liabilities;
not enter into or modify any employment, consulting, severance,
change of control or similar agreements or arrangements with, or
grant any bonuses, salary or fee increases, severance or
termination pay to, any officers or directors or, in the case of
employees or consultants who are not officers or directors, take
any action other than in the ordinary, regular and usual course of
business and consistent with past practice (none of which actions
shall be unreasonable or unusual) with respect to the grant of any
bonuses, salary or fee increases, severance or termination pay or
with respect to any increase of benefits payable in effect on the
date hereof and shall not pay or agree to pay any bonuses, salary
or fee increases, severance or termination pay to any director,
officer, employee or consultant in connection with the transactions
contemplated by this Agreement;
not adopt or amend any bonus, profit sharing, incentive,
compensation, stock option, pension, retirement, deferred
compensation, employment or other employee benefit plan, agreement,
trust, fund or arrangement for the benefit or welfare of any
employee;
not take any action, which would render, or which reasonably may
be expected to render, any representation or warranty made by it in
this Agreement untrue in any material respect at any time prior to
the Effective Time if then made, and promptly notify the Acquiror
first immediately orally and then promptly in writing of the
occurrence of any event or condition that has, or is reasonably
likely to have, a Material Adverse Effect in respect of the Company
in the course of its business or in the operation of its properties
and of any material governmental or third party complaints,
investigations or hearings (or communications indicating that the
same may be contemplated);
not authorize or propose or enter into or modify any contract,
agreement, commitment or arrangement to do any of the matters
prohibited by the other paragraphs of this Section 5.1;
not enter into or adopt any shareholder rights plan or similar
agreement or arrangement;
(i) duly and timely file all Tax Returns required to be filed by
it on or after the date hereof and all such Tax Returns shall be
true, complete and correct in all material respects, (ii) timely
pay all Taxes which are due and payable, (iii) not make or rescind
any material express or deemed election relating to Taxes, (iv) not
make a request for a Tax ruling or enter into a closing agreement
with any taxing authorities, (v) not settle or compromise any
claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to Taxes, and (vi) not
change in any material respect any of its methods of reporting
losses, deductions or accounting for income tax purposes from those
employed in the preparation of its Tax Return for the taxation year
ending December 31, 2014, except as may be required by applicable
Law;
- 22 -
not engage in any business, enterprise or other activity
different from that carried on by it at the date of this Agreement
that would reasonably be expected to have a Material Adverse Effect
on the Company; and
make or cooperate as necessary in the making of all necessary
filings and applications under all applicable Law required in
connection with the transactions contemplated herein and take all
reasonable action necessary to be in compliance with such Laws.
Covenants of the Acquiror Regarding the Conduct of Business
The Acquiror covenants and agrees that, except as contemplated
in this Agreement, until the Effective Time or the day upon which
this Agreement is terminated, whichever is earlier:
the Acquiror shall use commercially reasonable efforts to
preserve intact its business organizations;
the Acquiror shall not, directly or indirectly, do or permit to
occur any of the following without the prior consent of the
Company, such consent not to be unreasonably withheld or
delayed:
amend its articles or by-laws or the articles or by-laws of any
of its subsidiaries or the terms of its shares or transfer it or
any of its subsidiaries out of its current jurisdiction of
incorporation in a manner that could have a material adverse effect
on the market price or value of the Acquiror Shares to be issued
pursuant to the Arrangement;
split, consolidate or reclassify any of its shares nor undertake
any other capital reorganization;
reduce capital in respect of its shares;
take any action that could reasonably be expected to interfere
with or be inconsistent with the consummation of the Arrangement or
the transactions contemplated in this Agreement; and
- 23 -
issue any shares in its capital stock or the capital stock of
any of its subsidiaries (or securities convertible, exchangeable or
exercisable into its shares or the shares of any of its
subsidiaries) except upon the exercise of convertible securities
outstanding as of the date of this Agreement. Notwithstanding the
foregoing, the Acquiror shall be permitted to:
grant up to 6,000,000 service provider share purchase options
under its option plan and allowable shares pursuant to its
restricted share unit plan; and
raise the Concurrent Financing through the issuance of Acquiror
Shares or Acquiror Share equivalents;
lend money to or invest money in any third party, whether by
loan, acquisition of shares, acquisition of debt obligations or any
other manner whatsoever or guarantee, endorse or otherwise become
surety for or upon the obligations of any other person except as
herein provided;
enter into any material transactions or transaction out of the
ordinary course of business or enter into any material changes to
the terms or provisions of any agreement which is material (other
than in respect of the Concurrent Financing);
create, assume or suffer to exist (i) any liens upon or with
respect to any of the equity interests in any subsidiary, whether
now owned or hereafter acquired, or (ii) create or assume any liens
or security interest upon or with respect to any of its assets,
property or undertaking except under the Credit Facility;
sell, lease or otherwise transfer any material assets;
acquire or invest in any securities issued by any person or
participate in any partnership or joint venture or the acquisition
of any business assets or unincorporated business operations;
declare or pay any dividends, purchase, redeem, retire, defease
or otherwise acquire for value any of its equity interests now or
hereafter outstanding, return any capital to its stockholders,
directors or officers (or the equivalent persons thereof), make any
distribution of assets, equity interests, obligations or securities
to its stockholders, directors or officers (or the equivalent
persons thereof) or pay or agree to pay any bonus, directors fees,
consulting fees or other similar fees to any stockholders,
directors or officers (or the equivalent persons thereof), or amend
any existing service agreement, provided however, that the
foregoing will not restrict the Acquiror from making routine
payments of salaries or benefits to any salaried or hourly
employees of who are not directors or officers with the terms of
employment or consulting arrangements in place as at the date
hereof) and the Acquiror shall have the right to implement change
of control payment agreements with its senior executives on terms
acceptable to the TSX; and
- 24 -
other than as herein provided, enter into any contract,
agreement or transaction whatsoever, including for the sale,
purchase, lease or other dealing in any property or the provision
of any services (other than office and administration services
provided in the ordinary course of business), with any non-arms
length party. Notwithstanding the foregoing, the Acquiror may upon
notice to the Company, enter into a non-arms length transaction
which does not involve any remuneration, is not material and is
made upon fair and reasonable terms, which terms are not less
favorable to that party, as the case may be, than it would obtain
in an arms length transaction and, if applicable, for consideration
which equals the fair market value of such property or the fair
market rental as regards to leased property.
Covenants of the Company Relating to the Arrangement
The Company shall use commercially reasonable efforts to perform
all obligations required to be performed by the Company under this
Agreement, co-operate with the Acquiror in connection therewith,
and do all such other acts and things as may be necessary or
desirable in order to consummate and make effective as soon as
reasonably practicable, the transactions contemplated by this
Agreement and, without limiting the generality of the foregoing,
the Company shall:
use commercially reasonable efforts to obtain as soon as
practicable following execution of this Agreement all third party
consents, approvals and notices required under any material
Contract;
use commercially reasonable efforts to defend all lawsuits or
other legal, regulatory or other proceedings against the Company
challenging or affecting this Agreement or the consummation of the
transactions contemplated hereby and use commercially reasonable
efforts to have lifted or rescinded any injunction or restraining
order or other order relating to the Company which may materially
adversely affect the ability of the parties to consummate the
Arrangement; and
use commercially reasonable efforts to satisfy all conditions
precedent in this Agreement and take all steps set forth in the
Interim Order and Final Order applicable to it and comply promptly
with all requirements which applicable Law may impose on the
Company with respect to the transactions contemplated by this
Agreement.
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Covenants of the Acquiror Relating to the Arrangement